Suresh Kumar Gupta @ Chandu vs Union Of India
2017 Latest Caselaw 8105 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 5.12.2017
 
Judgement delivered on 19.12.2017
 

 

 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 3671 of 2016
 

 
Appellant :- Suresh Kumar Gupta @ Chandu
 
Respondent :- Union Of India
 
Counsel for Appellant :- Daya Shankar Mishra,Chandrakesh Mishra
 
Counsel for Respondent :- Sanjay Kumar Singh,A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

(Criminal Misc. Bail Application No. 229298 of 2016)

1. This application for bail has been moved by the accused appellant Suresh Kumar Gupta for being released on bail during pendency of appeal which has been filed against the judgment and order dated 2/7/2016 passed by Additional Sessions Judge, Court No. 9, Varanasi in a criminal case No. 39 of 2015, Union of India, Central Narcotics Bureau, Varanasi vs Suresh Kumar Gupta and one another whereby the accused appellant has been convicted under section 22 of NDPS Act and has been awarded punishment of 10 years rigorous imprisonment, fine of Rs. 1 lakh and in default of payment of fine 6 months additional rigorous imprisonment.

2. The facts in brief of this case as per the complaint are that Shri K K Srivastava, inspector/investigation officer, Central Narcotics Bureau, Ghazipur filed complaint before Court, who was appointed investigating officer under section 53 of the NDPS Act, 1985 by order dated 30/9/2014 of Deputy Commissioner, Narcotics, Lucknow. He had started investigation after being handed over this matter by the seizing officer/arresting officer, Inspector RS Ram. On 26/9/2014 Shri D K Singh, Office Superintendent, Ghazipur had received an information that Suresh Kumar Gupta alias Chandu, resident of Raj Mandir, PS Kotwali, Varansi was coming by Honda Sine motorcycle bearing registration No. U.P. - 65 BH 6186 who had with him 3000 - 4000 illegal narcotic injections which he would be selling to retail as well as wholesale sellers, if on 26/9/2014 between 14 hours and 16 hours an eye be kept on the route between Chauka Ghat to Nadesar, these injections could be recovered. After getting the secret information Shri D K Singh reduced the same into writing and held talks with Deputy Commissioner, Narcotics, Lucknow on phone and for acting upon the said information a team was constituted which comprised, apart from him, the complainant Shri K K Srivastava, Inspector, Shri RS Ram, Inspector, P N Ram, Vipin Kumar, Satendra Pathak, all Hawaldars who all went by an official vehicle being driven by driver Santosh Kumar Yadav to the place told by the informer. They also called two persons from the public namely Vaibhav Rai and Ravi Patel and were requested to remain present for the purpose, for which they gave their consent. While watch was being kept, around 14:30 hours a suspected person was seen coming from the side of bridge on a black motorcycle towards Ghausabad, who was pointed out by the informer to be the person having those injections and went away from there. The Inspector, RS Ram signalled the motorcyclist to stopped and asked his name. He disclosed his name as Suresh Kumar Gupta alias Chandu. The investigating party apprised him about a secret information having been received that he was carrying with him narcotic substance and hence search was required to be taken of the vehicle and his own and that he had a legal right under section 50 of the NDPS Act to be searched in presence of a Gazetted Officer officer or a Magistrate, if so desired. If the Magistrate or the said Gazetted Officer does not find enough ground to take a search, he could be released. At this, the accused gave his consent to be searched by any of the members of the raiding party in front of the departmental Gazetted Officer Shri D K Singh. After having taken his consent panchnama was prepared under section 50 in presence of the witnesses on the spot. Pursuant to the said consent Shri RS Ram, Inspector and all other members of the raiding party gave their search to the accused and to the witnesses who were present on the spot and when it was ensured that no member of the raiding party had any narcotic or psychotropic substance with them, the search of the accused was made by Shri R S Ram in front of the witnesses as well as the superintendent Shri D K Singh. In a plastic bag tied by a rubber rope by the rear seat of motorcycle, was found a carton, wherein Buprenorphine injection wrapped in a white paper were found. There were 340 wrappers. Each wrapper was opened. In 160 wrappers N - Norfin injection and in 180 wrappers Lupigesic injection were found. In each wrapper 10 ampoules were found. Thus there were found 160 ×10 = 1600 injections of N- Norfin and 180 × 10 = 1800 injections of Lupigesic. On each ampoule (injection) the quantity was written as 2 ML. Thus the total recovered injections were 3400× 2 ML = 6800 ML = 6.800 kg Buprenorphine Psychotropic substance. The accused could not show the valid papers to possess these injections. From out of the recovered Buprenorphine injections, as per their company, 2 injections each were taken out and were wrapped in cotton and thereafter were kept in a yellow coloured envelope and were sealed, which were marked as S - 1 and S - 2 for Norfin and S - 3 and S - 4 for Lupigesic and the remaining Buprenorphine injections were kept in wrappers of 10-10 each and were kept in the same carton and were sealed. The motorcycle which was recovered from the accused which was used in transportation of the contraband substance was also taken into custody. All this was done at 15:30 hours. All the proceedings of recovery were done in presence of witnesses, officers and accused. The seal which was used on all the panchnama and recovery memo and samples, the same seal was also affixed on each page of panchnama in the margin. The recovery memo was read out and signatures of all were obtained thereon. The statement of accused under section 67 of NDPS Act was taken by the Inspector, in which he stated voluntarily in his own handwriting that he had kept the recovered injections in the carton on the rear seat of his motorcycle and that he was involved in smuggling of psychotropic and narcotic substances. The accused was arrested at 18:30 hours under section 8/22 of NDPS Act by the Inspector Shri RS Ram after having told the accused the reasons thereof and all the papers along with recovered substances were also sent before an Additional District and Sessions Judge for remand and on the orders from the Court the accused was handed over to the District Jail, Varansi. The sealed contraband substances, seals and motorcycle were all deposited in departmental Malkhana in Ghazipur. The report under section 57 of the NDPS Act was sent by inspector Shri RS Ram to Shri D K Singh, Superintendent on 27/9/2014. The seal of sample S - 1 and S - 3 along with test memo were sent to Central Revenue Control Lab Hillside Road Poosa, New Delhi on 29/9/2014 by registered parcel. Thereafter vide letter dated 9/10/2014 the same was returned in sealed condition stating that their lab did not have the facility of testing Buprenorphine and it was advised that the same should be sent for being tested to Hyderabad Laboratory or some other Government Laboratory. Thereafter the said samples were sent to Director, Central Forensic Science Lab, Hyderabad, but even from there it was informed that they did not have the facility to test Buprenorphine. Thereafter, the said sample was sent to Director Central Indian Pharmacopoeia Laboratory Ghaziabad, from where also sample was returned because the said lab had been transferred somewhere else. Thereafter, the sealed sample was sent to Director, CFSL, Kolkata by special messenger, but even from there the same was returned on 27/11/14 stating that the same should be sent to them on prescribed proforma, whereafter, after taking permission from the Court of Additional Sessions Judge, the said samples were sent on 30/11/2014 to Kolkata Laboratory. On 29/4/2015 the report from the said lab was received and it was found to be Buprenorphine. The learned Court below after having found the charge proved against accused appellant convicted him under above-mentioned section and awarded the aforesaid punishment.

3. The learned counsel for the appellant has made following arguments. The compliance of section 42 of NDPS Act has not been done in this case which is a mandatory provision. In this regard he placed reliance upon the law laid down in State of Rajasthan vs Jag Raj Singh alias Hansa, (2016) 11 Supreme Court cases 687 and the paragraphs 13 to 18 were read out by the learned counsel word by word. It was hammered by him that in this case secret information recorded and the information sent to the circle officer were found to be different, as the same copy of secret information was not sent which was reduced into writing, rather a separate memo was found to have been sent and hence this was found to be a breach of section 42 (2) of the NDPS Act. The other breach in this case was found of non-compliance with proviso to section 42 (1). It was mentioned that section 42 (1) indicates that only authorised officer can carry out search between sunrise and sunset without warrant or authorisation. The scheme indicates that in the event the search has to be made between sunset and sunrise, the warrant would be necessary unless the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of the offender, which grounds of his belief have to be recorded. In this case there was no case that any ground for belief as contemplated by the proviso to sub section (1) of section 42 or sub-section (2) of section 42 was ever recorded by the Station house Officer who proceeded to carry out search. The Station house Officer had appeared in evidence and stated that he had not come with any case that it was required by the proviso to sub section (1), to record his grounds of belief anywhere. It was argued that not recording any reasons in regard to not obtaining the search warrant as was contemplated under section 42 (1) and not sending a report in this regard as contemplated under section 42 (2) to higher authority, constituted breach of the mandatory provisions of section 42. Citing this ruling the learned counsel for the appellant stated that in the case at hand Shri D K Singh, who was a member of the raiding party as well, ought to have sent secret information, received by him to his higher authority and also should have recorded the reasons as to why search warrant could not be obtained before arresting the accused and the same ought to have been sent to senior officials.

4. Argument made by the learned counsel for the appellant is that Shri D K Singh was member of the raiding party, hence the arresting officer should not have sent a report of compliance under section 57 of NDPS Act to him because he could not be treated to be an independent person. Hence the compliance of section 57 of NDPS Act shall be treated as deficient in this case. In this regard reliance has been placed upon State of Rajasthan vs Ram Chandra, (2005) 5 SCC 151 wherein the Deputy Superintendent of police who was a member of the raiding party was the person before whom search was made when the accused opted for the same. The High Court found that to be not sufficient compliance of section 50 of NDPS Act but the Supreme Court held in Para-22 of this judgment that the object of the Act being that search is conducted in presence of a superior officer, in order to lend transparency and authenticity to the search, it could not be held as a principle in law that if a superior officer happened to be with the officer authorised (which the High Court has described as being a member of the raiding party) the position would be different. The High Court proceeded on the basis that there might be bias on the part of the officer because he was accompanying the officer authorised. Such a presumption was not legally available.

5. The compliance of section 55 of NDPS Act has not been made because the seal on the recovered contraband substance of Incharge of the police station was not affixed.

6. Next argument made by the learned counsel for the appellant is that the confession recorded of the accused appellant under section 67 of the NDPS Act cannot be held to be valid because the same was not recorded before independent witnesses. The officers of the raiding party would be treated to be police officials in the presence of whom such a confession would be held to be invalid confession.

7. Further, he argued that no independent witness was taken to prove recovery. For transparency and credibility of the said recovery an endeavour ought to have been made to take the accused appellant before the nearest Magistrate as was laid down by the Supreme Court in Jadeja's case. All the Exhibits have not been signed by the officer before whom they were proved, hence they cannot be taken into consideration and it would be treated to be no evidence case. It is also argued that the date of occurrence is 26/9/2014 while Shri K K Srivastava had written a letter on 29/11/2014 to ADJ, Varansi for sending the specimen of contraband substance. It has not been brought on record by prosecution as to where the sample of contraband substance was kept from 26/9/ 14 to 29/11/2014. The delay in sending the sample of contraband substance shows that there was enough opportunity for tampering with the said samples. The sample is alleged to have been sent after taking permission from Court, which is not an established practice, because only under section 52 Ka (2) of NDPS Act the sample of contraband substance is sent to FSL through Court otherwise the investigating officer is directly supposed to send the contraband substance for being tested. The Register of Malkhana has not been produced, hence there is no link evidence to prove that since the time the contraband substance and its samples and seals were kept in Malkhana, how many times they were taken out and where. The accused has already served out one third sentence and in an identical case a coordinate Bench of this Court had granted bail to the accused. The reliance is placed on the law laid down in Dilip vs State of MP, in which it is held that if search is made of the person as well as the vehicle, the section 50 of NDPS Act shall be applicable. The co-accused has been acquitted in this case.

8. In rebuttal the learned counsel for the Union of India has argued that the office of Central Bureau of Narcotics in State of U.P. is situated in Lucknow, where the highest officer of this department is sitting having designation of Deputy Narcotic Commissioner. Below him in District Ghazipur the seniormost officer having designation of Superintendent, is sitting who is a Gazetted Officer. This case also belongs to District Ghazipur. Shri D K Singh, Superintendent was the highest officer. This is a complaint case. The seizing officer is RS Ram, Inspector and Shri K K Srivastava, Inspector was appointed as investigating officer. The secret information was received by Shri D K Singh, which was reduced into writing and was communicated to Lucknow, Central Bureau of Narcotics. The compliance of the provisions of section 42 has been fully made because the secret information was reduced into writing and the same was forwarded to the Deputy Narcotic Commissioner, Lucknow. Even if it be taken that the same was not complied with, the Supreme Court has laid down in G Srinivas Gaud vs State of A.P., (2005 ) 8 SCC 183 that where Gazetted Officer has received secret information he need not send it to the higher authorities. The compliance of section 50 of NDPS Act has also been made in totality because written consent was taken from the accused appellant after apprising him of his legal right that if he desired he could be searched in presence of the Gazetted Officer or a Magistrate but he consented in writing to be searched in presence of the Gazetted Officer Shri D K Singh. It is also argued by him that the accused appellant had made confessional statement under section 67 of NDPS Act and never ever he retracted the same, nor did he ever state that the same was obtained from him by force, not even at the time when he was presented before the Court of Additional District and Sessions judge/Special Judge NDPS Act for remand. He has further stated that sufficient explanation has been given of delay in sending the samples of contraband substance to the Forensic Science Lab which finds mention in the judgment itself. It is also stressed by him that no application was ever moved by the accused appellant being dissatisfied with the report of Forensic Science Lab that any officer of the lab be called for being examined in Court, which amounts to his admitting correctness of the said report, maybe he was convinced that the said report was admissible under section 293 of the Criminal Procedure Code. Regarding the contraband substance and its samples being deposited in Malkhana, it is stated by him that if the accused appellant had any doubt about these articles being deposited in Malkhana, questions could have been asked in cross-examination from the witnesses of prosecution. No enmity has been shown of the officers of the raiding party with the accused appellant, so it could not be concluded that because of enmity the accused was falsely implicated. Such huge quantities of narcotic injections were not possible to be planted. The seal which was used on the spot in sealing the narcotic injections and their samples was that of RS Ram and the same seal was found by the Forensic Science Lab in intact condition, evidence of which is available on record. An appeal has been filed against the acquittal of the co-accused. The law relied upon by the learned counsel for the appellant in Dilip and another vs State of MP, (2007) 1 Supreme Court Cases 450 a lot of infirmities, various lapses had been committed, hence no benefit of the same could be given to the accused appellant. The officers of the Central Government are not police officials as they are empowered only to file complaint directly in Court and not to file a report under section 173 of Cr. P.C. It is also lastly stated that even DW 1 has not supported the case of the accused appellant as has been held by the learned Court below.

9. Again the learned counsel for the appellant gave reply of the arguments of the learned counsel for the Union of India and placed reliance upon the law laid down in State of Uttaranchal vs Rajesh Gupta, 2007 (1) SCC 375, wherein it has been laid down that the provision of section 37 of NDPS Act must be construed in a pragmatic manner. Further reliance is placed upon 2000 (1) SCC (Criminal) 189 Thani Ram vs State of Haryana wherein the Supreme Court allowed the appeal and set aside the judgements of both the Courts below because of non-compliance of the provisions of section 55 and 57 of NDPS Act. It is further argued that no enmity with raiding party could be proved by examining DW-1.

10. It is quite apparent that both the sides have made extensive arguments on an application of bail which is little unusual, because at the level of bail the Court is not supposed to go deep into the merits of the case and is supposed to see broadly whether the Court was satisfied that there were reasonable grounds for it to believe that the accused appellant was not guilty of such offence and whether accused appellant, if released on bail was not likely to commit any offence, as these are the two important ingredients to be taken into consideration while considering bail to be granted to the accused appellant. Therefore the Court would take only important aspect into consideration for forming its opinion in this case.

11. First of all the matter of non-compliance of section 42 of the NDPS Act is being taken up which has been argued with much force by the learned counsel for the appellant, relying upon State of Rajasthan vs Jagraj Singh alias Hansa (supra). Before proceeding to analyse as to whether The benefit of above ruling may be given to the appellant or not, it would be pertinent to refer to the law laid down by the Supreme Court in Gyan Chand and others vs State of Haryana, 2014 4 SCC (criminal) 226 in which it has been laid down that each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is most pronounced in criminal cases were the backbone of adjudication is fact-based. Therefore, the law laid down in Jagraj Singh's case (supra) is not being disputed, in which compliance of section 42 was found to have been breached because secret information in that case was found by SHO which was recorded but its communication was not found to have been made to his immediate superior because there was found to be difference between the two and the occurrence therein was of night i.e. 8 PM, but the facts of the present case are totally different because here Shri D K Singh, Gazetted Officer had received the secret information and the occurrence was of the time of about 2:30 PM to 3:30 PM. A large No. of citations have been relied upon by the learned counsel for the union of India in respect of the law on compliance of section 42 of NDPS Act such as Yasishey Yobin and another vs the Deptt. of Customs, Shillong, 2013 STPL (Web) 215 SC, G Srinivas Goud vs State of AP, (2005) 8 Supreme Court Cases 183, Union of India vs Satrohan, 2008 (63) ACC 902 (Supreme Court) and M. Prabhulal vs the Asst Director, Directorate of Revenue Intelligence, 2003 (47) ACC 1151 (Supreme Court). The position of law is crystal clear in respect of compliance of section 42 of NDPS Act. It is absolutely clear that section 41 (1) empowers a Magistrate to issue a warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search. Under section 41 (2), only Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorise an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of section 41 vests all the powers of an officer acting under section 42 on three types of officers (i) to whom a warrant under section (1) is addressed , (ii) the officer who authorised the arrest or search under sub-section (2) of section 41, and (iii) the officer who is so authorised under sub-section (2) of section 41. Therefore, an empowered Gazetted Officer has also all the powers of section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorisation. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of section 42. In case of an emergent situation, these powers can also be exercised between sunset and sunrise without obtaining a search warrant or authorisation, in terms provided in the proviso to sub section (1) of section 42. Sub-section (2) of section 42 is mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from section 41(2) that the Central Government or the State Government, as the case may be , can only empower an officer of Gazetted rank who can either himself act or authorise subordinate on the terms stated in the section. Under sub-section (1) of section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of section 42, there are additional checks and balances as provided in proviso and also provided in sub-section (2) of section 42. It is clear from the language of sub-section (2) of section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure and arrest in a public place. Any officer of any of the departments mentioned in section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in section 43. It can, thus, be seen that section 42 and 43 do not require any officer to be Gazetted Officer whereas section 41 (2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him, can also be seen from section 50 of NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. Therefore, in the present case it can safely be held that since the search was made in the presence of a Gazetted Officer and the secret information which was received by an officer was the Gazetted Officer, there was no need for recording the same and to pass on the same to higher authority. There was therefore sufficient compliance made in the present case because the secret information was recorded in writing and thereafter a team of officers was constituted after consultation with the senior authority for making search of the accused and seizure of the illegal narcotic injections from him.

12. The learned amicus curiae, next, has argued that the confessional statement recorded of the accused appellant in the present case shall be inadmissible, officers of the Central Narcotics Bureau being equal to the police officers, who were vested with the power of investigation, therefore such a confession would not be admissible under section 25 and 26 Of the Indian Evidence Act. In view of this the confessional statement of the accused recorded by officers of the Narcotics Bureau shall not be treated admissible and shall be hit by section 25 and 26 of the Indian Evidence Act. In this regard he has placed reliance upon Noor Aga vs State of Punjab, 2008 16 SCC 417, in which it has been held that section 53 of the Customs Act empowers the customs officers with the powers of the Station House Officer. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of section 53 would, thus, be deemed to be police officer and for the said purposes section 25 of the Evidence Act shall be applicable. In rebuttal the learned counsel for the Union of India has placed reliance upon Ram Singh vs Central Bureau of Narcotics (2011) 11 Supreme Court Cases 347, in which it has been clearly held that the officers of the Central Bureau of Narcotics, though have been conferred powers of an officer in charge of police station, but that by itself shall not make them police officers within the meaning of section 25 and 26 of the Indian Evidence Act, because they have not been conferred with power to submit report under section 173 of the Criminal Procedure Code. Such officers are required to lay complaint in Court of the Special Judge for prosecuting accused; hence they cannot be treated as police officers. In view of this it is argued by him that the confession made in the present case before officers of the Central Bureau of Narcotics shall not be hit by section 25 and 26 of the Indian Evidence Act. It is further argued by him that the accused appellant in the present case did not state before any authority that his confession was recorded under duress or compulsion although he had number of opportunities available to say so. Therefore in such circumstances such confession shall be treated as believable and would be a good corroborative piece of evidence. Moreover he did not retract the said confession. In this regard he has relied upon Union of India vs Satrohan, 2008 63 ACC 902, in which there was statement of accused - respondent in terms of section 67 which throws considerable light on the controversy. In the said statement recorded, there was no retraction and in fact during examination under section 313 of Cr. P.C., while answering question No. 4 it was stated that there was no confession. The confessional statement was recorded on 20/11/1992, while the statement under section 313 of the Code was recorded on 6/2/1999. There was no retraction of said confession. At the time of his production before Magistrate, there was no allegation of any torture as subsequently stated. In such circumstances, such confession was treated to be valid.

13. Though there are a number of other arguments which have been made by the learned amicus curiae, which have been stated above and which have been replied by the learned counsel for Union of India adequately as mentioned above, they need not be discussed in detail at the stage of bail. All these points would be taken up during final argument.

14. In the light of above discussion, without expressing any opinion on merits of the case, this Court is of the view that it is not satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence if released on bail, which are two essential conditions as per the provisions of section 37 of NDPS Act governing the grant of bail to the accused.

15. Consequently the bail application deserves to be dismissed and is accordingly dismissed.

Order Date :- 19.12.2017

A.P. Pandey